If you can't stand in the same river twice, does that mean you can't own it? Might Maori have a special right to water? And could Maori law trump common law? As the Waitangi Tribunal prepares to report back this week, the water rights debate is set to gush again

Hold onto your hats... and your water... this is going to get bumpy. When the Waitangi Tribunal rules at the end of this week on Maori water rights, it'll be the beginning of the real debate over water, not the end.

The question of who owns -- and who has rights to -- water is utterly simple and extremely complex at the same time. It's the sort of argument that could put immense pressure on any government, not least a centre-right government so dependent on a Maori party.

Here's the simple part: Under common law dating back centuries, no-one can own water or air. Unlike land, it's constantly moving, changing and impossible to claim. Remember the old bit of early philosophy that you can't stand in the same river twice? That's one reason why olde English law says you just can't own the wet stuff.

You can own the banks and the bed and the land surrounding, an iwi such as Waikato-Tainui can have co-governence of a "river environment", but you can't own the water.

Ownership -- and profits -- can only be claimed when you contain water, say in a pipe or bottle. Hence the ability of councils to charge you for your rates and bottling companies to sell you bottle-sucking suckers water from a spring.

Equally as simply, at first, is the Maori Council's claim to the Waitangi Tribunal. Essentially it says Maori have property rights dating back before the Treaty of Waitangi. If the water from springs, lakes or rivers on Maori land is being used make money for said councils and bottlers, for example, they deserve a slice of the action.

Hardly unreasonable.

But this is where it gets harder. Iwi and hapu have been happy to progress claims on individual waterways over the years... until National decided to sell off chunks of our power companies. Suddenly they saw a messy legal situation on the horizon. Cynics might say they saw an opportunity.

Once shareholders got involved, it'd be much harder to establish rights over or interests in that water. And heck, if those shareholders are going to make money from this water and the power it helps generate, why shouldn't we?

So the Maori Council laid its Tribunal claim seeking a ruling on Maori rights and interests and asking for the asset sales to be deferred.

There's another post on the politics of that and whether National can afford to push ahead with the sales... or whether it can afford to delay. But for now I just want to discuss water rights.

Sir Eddie Durie and Haami Piripi were on Q+A today, admirable New Zealanders both of them. But what a pandora's box they're opening.

Sir Eddie says Maori aren't claiming ownership of all water. They aren't claiming shares in the power companies. Rather, they're looking to protect their proprietary rights and interests. They'll make claims of discrete springs or waterways on the basis that if "someone else is going to use it, they should pay for the use".

But if every hapu and iwi make their claims river by river, lake by lake and spring by spring, that will add up to a lot of waterways. Maybe not all water, but a heck of a lot of it. In every case Maori are claiming a financial interest.

Although this debate was sparked by the attempt to sell assets to private owners, it could end up costing the public purse as well, with council-owned water companies having to stump up for the first time.

On top of that there are the waterways that have dried up, been built on or drained. Sir Eddie says the government should pull together a compensation fund to pay iwi and hapu for that.

Now that's all controversial enough. But Haami Piripi takes it a step further. He says the idea that Maori have a "generic" right to water "needs to be explored". He's being cautious with his language, but by that I think he means some kind of 'first persons' right to all water.

Piripi says Maori interests in water are "pre-common law". Now that's a hell of a claim. I'm not sure when the common law around water non-ownership was established in Britain and how that compares to the estimated Maori arrival times in Aotearoa, but any way you look at it that's a direct challenge to the legal tradition that currently holds sway in this country.

Interestingly, Sir Eddie (and remember this man was Chair of the Waitangi Tribunal, Chief Judge of the Maori Land Court, and a Law Commissioner) didn't dispel that idea.

Sir Eddie said the Maori rights to water (proprietary, not ownership) stem from customary use and the fact the waterways were Maori's primary source of food. Check out this exchange with Shane Taurima:

EDDIE So in the Maori legal scheme, the water, the lakes, the wetlands and the springs are the primary source of their food.

SHANE But pakeha law, if I can say, or the law, if you like, says that nobody owns water.

EDDIE That’s the pakeha law. That’s a different law.

SHANE Does that law need to be changed?

EDDIE Well, it’s a law that developed in England where you had access to cattle and sheep and all the rest of it and a huge array of crops. They weren’t dependent upon the water supplies in the same way as the Maori were. They have a legal regime which says that water is merely ancillary to land. Whereas in the Maori legal scheme, it is central.

SHANE So what does this mean?

EDDIE Well, it means that property rights are to be determined according to the customs and traditions of Maori. That’s a long established principle in New Zealand and internationally, and we’re saying that that right which was established in that way, through customary use, should continue to be recognised to the extent that it is still feasible to do so.

SHANE Does that mean, therefore, that Maori can own water?

EDDIE No, it means that they have access right to water.

So Sir Eddie doesn't say the law needs to change, but he does draw a distinction between Maori and Pakeha law. He does say that the law that applies to England is unique to that country and its history. It seems to me, that's quite a challenge to our common law. (I'm sure the law profs will be on like a lfash to tell me if I'm wrong).

He does come back to the point that it's not about ownership. But when he's questioning the basis for our understanding that no-one owns water, it's hard not to see a more subtle debate in play.

The telling point is that the Prime Minister is in no doubt. The majority of voters, I'm sure, are in no doubt. And that's where the tension of this debate lies and why the Tribunal's ruling this week is not going to end what needs must be a very long and careful discussion.

Comments (24)

Tangent alert. Electricity flows just like water (but is contained by that pipe) but is equally fundamental to modern life. Turning someones electricity off can have disastrous consequences. We can build our own water tanks and reduce the cost of the water supply but technology hasn't quite got to the state where it can reliably capture and store electricity. Until cheap reliable electrical generation and storage is freely available to all; I think electricity, like water, should be held publicly, for the public good.

When did this happen? Supreme Court recently upheld the Pouakani hapu in its claim for 'bits of the waikato riverbed' near its locale - but 'Tainui'. Not possible Tainui is 4 tribes. There are co-management rights (throught the Waikato River Authority) but 'ownership of the riverbed of the Waikato River' per se has not happened.

Piripi says Maori interests in water are "pre-common law". Now that's a hell of a claim. I'm not sure when the common law around water non-ownership was established in Britain and how that compares to the estimated Maori arrival times in Aotearoa, but any way you look at it that's a direct challenge to the legal tradition that currently holds sway in this country.

No its not. "Pre common law" means before the English common law arrived in New Zealand (14 January 1840). And its well established as part of the common law that it does not automatically trump previous legal systems. In places like Louisiana and Quebec, that means that all or part of their legal system operates under French-style civil law (because both places were French colonies before British takeover, and their local legal system was not displaced). In New Zealand, it means that Maori custom continues to hold such legal force as it had, unless Parliament has explicitly overridden it (which it has done in most cases, though in some cases that explicit over-riding is or was a Treaty breach).

This isn't legally controversial at all. Just an application of our basic constitutional principles.

Chris, thanks for those. Relied on faulty memory and internet (should have known better!). Those points are now corrected. Re Waikato, I was of course talking about co-governance agreement from 2008/2009.

Not sure what you're referring to when you italicise ownership. I mention several times what Durie said on Q+A (and has said many times). If you mean the title, I think there's certainly an ownership debate going on. That's why John Key keeps saying 'no-one owns water'.

I/S, I don't think it's constitutionally that simple at all. Or legally. Otherwise we wouldn't be gearing up for a court case, we wouldn't have the PM insisting no-one owns water whilst someone of Piripi's standing talks about "generic" rights, we wouldn't have iwi/hapu claims before the tribunal. The stance of this and previous governments rests on common law; Piripi's suggestion is that such a stance may not be as sound as those governments make out. Are you clear that Maori customary use of rivers is guaranteed in law? If so, why this claim? Why the Tainui deal?

Tim: I think that simply illustrates your ignorance of our constitution. This is a well-established common law principle, and it has been accepted by New Zealand courts for 150 years. Even Justice Prendergast of "simple nullity" fame accepted it; he got around it by saying that Maori were "barbarians" and "savages" with no body of customary law to recognise. And the Court of Appeal (whose members went on to become our first Supreme Court) recognised it in the foreshore & seabed case. The same principles established in that case are going to apply to rivers: its a question of the facts around customary useage and whether there has been explicit confiscation on law or implicit confiscation by preventing customary rights from being exercised (the latter two obviously being a Treaty breach for which there must be redress). Some issues may already be covered by existing Treaty settlements (though interestingly, the Tainui settlement explicitly excluded aboriginal title). For the rest, there will be uncertainty until the government settles.

Of course, something being constitutionally clear doesn't make it politically simple. Hence Key's posturing, and the likely need for a lawsuit to defend Maori rights in the face of privatisation.

William, I think you either do it one of two ways. Either the state owns it 100% and operate at cost or take a less than 100% ownership and operate at a profit. I think your argument about providing the essentials of life has validity.

What I am against is a 100% state owned entity running at a profit. It's taxation by stealth and it's a tax that takes the same amount from each energy user regardless of income. So the poor end up paying a higher percentage of their income than other taxpayers.

Tim: Being pedantic I referenced 'ownership' as it was not the question NZMC took to the Waitangi Tribunal. But you have rightly id those reasons. Hence my question of its use in your blog heading - but it is your blog - hei aha.

IMO - the word 'ownership' has overtaken & partially submerged the original issue of NZMCs claim & which was reflected in the Q+A discussions on Sunday - (now have transcript) .

At the same time the 'ownership' word has widened the debtate (most necessary) & which the country is now enjoying.

I am sure WT will respond / address the original question of rights (whether @ common or customary law) & will not ignore or gloss over it & then recommend government taihoa its asset sales program.

Government may ignore (as is its right) the recommendations & result in legitimate rights / concerns that Maori have in relation to the water resource being swept aside.

Government could promote 'ownership' by Maori of water to justify its decision. Will it do just that? John key's oft-quoted comment 'no-one owns the water' was deliberate & provocative & has caused discomfort in the electorate. Then what is it he is selling? It too cannot sell water.,

@ I/S comments: there is no NZ statute that has extinguished hapu rights to water & until they are clearly extinguished by government the NZ common law will prevail.

In 2003 Court of Appeal (CA) in Ngati Apa reintroduced the unqualified application of common law doctrine of native title into NZ & articulated the principle that when the common law of england came to NZ its arrival did not extinguish Maori customary title ... title to it must be lawfully extinguished before it can be regarded as ceasing to exist.

It begs the question whether Maori customary title to freshwater (rivers, streams, lakes etc) remain the property of Maori in accordance with the doctrine of native title?

The Crown claims @ common law that 'no-one' owns water (a common property - like air) & CA warned against such presumption:

'The common law as received in NZ was modifified by recognised Maori customary property interests. If any such custom is shown to give interest in the FS there is room for a contrary perspective derived from common law. The common law of NZ is different.'

Maori citizens do have customary rights that were officially endorsed in 2010 by John Key's government.

Article 25 of UN DRIP: 'Indigenous peoples have the right to maintain & strengthen their distinctive spiritual relationships with their traditionally owned or otherwise occupied & used lands, territories, waters & coastal seas & other resources & to uphold their responsbilities to future generations in this regard.'

Will John Key's government ignore its international obligations & extinguish Maori customary title to justify policy /election decisions?

I think the biggest difference with water from other natural resources is that it needs to be "managed". Even if not used, there are from time to time downstream issues, such as flooding which can cause destruction and loss of life. Add in usage and you need to manage both upstream and downstream rights of quality, access and use. In fact it was just such a problem that the Treaty set out to solve, i.e. a state of lawlessness between the various people then living in New Zealand, and to that end Maori gave to the Crown the responsibility to provide Government (a form of Management). With respect to water the Crown instituted a management process i.e. the notion of "water rights" as one of their responsibilities under the treaty. So Councils, SOE's, Farmers whoever, apply for a right to use/take water under this management process. This management process is very complex and it involves a good deal of research to understand water from its catchment, its flow above and below ground, its natural storage, the sediments it carries, and how it reacts to both extremes as in floods or droughts. Again the Maori in the early 1800s in their wisdom must have foreseen these problems and thereby asked to Crown to manage things on behalf of all.

Under this Water Rights process the Crown does not make a profit, though they do extract management costs. Their aim in managing this is to create an environment for all to prosper which includes some making their livelihood and some using it for recreational purposes.

The problem with trying to argue that rights exist that predate New Zealand settlement is the need to manage the resource and if management practice, through research and need suggests that we need to change pre-existing use then under the First Article of the treaty the Maori gave the Crown both the right and the responsibility to do so.

I/S, you may know more about this than me; you may be an expert. And if it makes you feel better to insult me and ignore questions, so be it. But I still disagree with you. I think the legal situation isn't as cut and dried as you think (for one, to say tikanga has been accepted by NZ courts for 150 years seems to ignore the ebb and flow in that time). The legal debates over just the past few weeks and over this exact issue is evidence how uncertain this all is.

I'm fully aware that Maori customary law or tikanga exists and has standing in our law alongside our laws from England. But I also know that the understanding of them – and the tikanga itself – is evolving and isn't as "well established" as you make out. Indeed there's not much about New Zealand's fluid constitution that's terribly well-established. (I'd love you to spell out what our "basic constitutional principles" are and see if you could get a room of lawyers to agree to them, let alone ordinary citizens).

And for what it's worth, comparisons with Canada and the US are of limited use given their written and rather different constitutions (for all that we've learnt off each other when it comes to indigenous law).

You seem to be certain that tikanga legally trumps common law unless parliament has enacted something to the contrary, end of story. I don't believe it's that simple. Hence the tribunal case and likely court case to come.

Look at the post. Durie says Maori don't claim ownership. But then he also says that the common law that no-one owns water is pakeha law, not Maori law. And there are certainly Maori who claim that tikanga does allow for Maori ownership of water.

Durie is drawing a distinction – revealing a tension – between the two laws. Don't you find that even a little controversial? Don't you wonder why he'd make that distinction?

Piripi didn't seem quite as circumspect as Durie, suggesting Maori rights to water that go beyond individual hapu and iwi. He said he doesn't fully accept the assertion that no-one owns water and by saying Maori rights pre-date common law, suggested (as you claim) that tikanga trumps common law.

This government and previous ones have a legal opinion to the contrary. Now perhaps you know better than the government lawyers. Perhaps it's all "clear" to you. Perhaps you don't find that controversial or legally debateable. But I don't see how.

I think neither the majority of New Zealanders nor the government accept the simple primacy of tikanga here or that it's even clear exactly what the tikanga is regarding water rights. Which means it isn't contitutionally clear at all.

You may not think that's controversial, but I reckon you're kidding yourself.

Chris, maybe I should have written 'ownership'. But the point was that Piripi seemed to be open to the idea of ownership in some sense... and maybe Durie too under Maori law, despite his protests to the contrary. But your point's well made.

As for what he's selling, the government's lawyers made the point before the Tribunal that National's selling shares in power companies, not in water. They still argued no-one can own water – although my humble understanding of the law is that that all changes once you put it in a pipe or bottle. So power companies, councils etc can 'sell' it.

Interesting point about the UN declaration... and the use of the word "owned" regarding water. Hmmmmm.

At the risk of being a hopelessly mealy-mouthed centrist, there's an element of truth to both your positions.

First, when you (Tim) say:

[I/S] seem[s] to be certain that tikanga legally trumps common law unless parliament has enacted something to the contrary, end of story. I don't believe it's that simple.

This doesn't quite fully capture the legal position. It's not that tikanga and common law are in direct opposition here ... rather, the common law position itself is that tikanga takes precendence over any competing common law rules (unless overridden by statute). So what is playing out here is an apparent tension within the common law - those rules of law that came over to NZ with the settlers as a part of their general understanding of how society should work.

So, one of those common law rules was (and is) that the exisiting property rights of native peoples as they themselves determined these would continue to have force after settlement (unless and until they were removed by statute ... because that represents a "higher" form of law). Another common law rule was (and is) that no-one can have a property right in water (because such a concept was not a part of the mental furniture of UK lawyers). But this second rule was (and is) entirely subsidiary to the first - in practice, it meant no European settler could "own" water (because there would be no common law or statutory basis for that claim), but it couldn't displace any property rights Maori may have under tikanga (because common law itself says that common law property rules brought into NZ are not able to override existing property law rules ... only Parliament can do so under statute).

(As an aside, when you (Tim) say "comparisons with Canada and the US are of limited use given their written and rather different constitutions", I think you're off the mark. This is standard common law doctrine across all those jurisdictions (given their roughly contemporary settlement), and subsequent differences in constitutional approaches don't undermine the basis for comparison.)

That said, it's easy to set down general statements of law. The devil is in applying them to individual cases. Because, even if the common law today continues to recognise any property rights Maori may have had to water under tikanga at the time of colonisation, the existence and nature of those property rights at that time (as well as whether they continue to exist today ... because the rules of tikanga must be applied to determine if the basis for the claim remains ... and if the fires have grown cold, then the rights will lapse) is still up in the air. And here the common law's failure to recognise property rights in water becomes a problem. Because, it means we have no readily available legal categories into which we can translate any Maori property interests. Which may be partly the reason for the differing way in which Maori are describing what it is that they are after - because there just isn't the legal language there yet to put it into words.

At this point, a comparison with the Foreshore and Seabed issue is educative. Remember, that started with a particular legal claim - to have the Maori Land Court decide whether or not a hapu could claim to have "native title" in a particular parcel of the F&S, in accordance with the relevant provisions of the Te Ture Whenua Maori Land Act. In other words, there was a pre-existing legal route available to decide whether an identified Maori group could claim an already identified form of property interest. But with the water issue, there is no such legal route (aside from a claim before the High Court) and no established form of property right already sitting there in the law waiting for a court to decide whether or not it applies. Instead, a court would have to start inventing an appropriate form of property right to capture what it was that tikanga recognised back before settlement (always assuming there was/is a basis in tikanga for any form of property claims). Is it full ownership? Some form of guardianship? A right to just share in any profits made from its use? Less?

So we have a combination of the political explosiveness of the F&S issue combined with a greater degree of legal uncertainty (not so much over whether the common law can recognise Maori property interests in water, but rather what the nature of such interests might be and how they can be proved in any given case). Which, to my mind, fully justifies Tim's cautioning that this issue could be Pandora's Box

But, that said, always remember what was the last thing to leave that casket ... .

Andrew , thanks for the reference to Pandora's box , I never knew about the last thing to emerge, it changes everything.

As for the rest of this dicussion , not being a lawyer I don't know that I could contribute.

Other than to say the timeing of a this move on water rights/ownership/Kaitiakitanga around power company asset sales is interesting. Personally anything that blocks the sale of state assets is fine with me, but is whats happening a smart move to block asset sales or actually a deeper move to resolve the ownership, management and gaurdianship of water?

Tim: Your short references to comments from Haami & Sir Eddie were not clear until I read the transcript in its entirety.

Haami was speaking for / or on behalf / or 'representing' the Iwi leaders group - not as an individual or fronting for a hapu or personal tribal interest. He too was wearing 'other hats' & methinks that shadowed the debate further into the shallows.

He expressed his own personal understanding & experience, the collective voice & he adjusted his position in response to the questions raised & responses from Sir Eddie & the promptings from Shane (who really must do more reading - unless his methodology was deliberate). So we were never going to get a 'set piece' from him. And that is typical of most debates & discussions I am currently participating in with different people & groups.

The government proposes to down-sell 49% of the power companies. What is it selling? a) An opportunity for you & me to make money from shares: & b) the ability of a board to operate the 49 percentage & also make money.

The govermment is also partially selling an existing right to an existing economic resource - water. Just because MRP will be partially sold does not interefere with the existing water resource consent to take & discharge x-trillion litres of water from Waikato River & other wet bits. That resource consent right continues for x years (not sure the current period that remains).

So where is the economic opportunity buy-in for Maori? LIttle wonder Sir Eddie's approach & responses.

Little wonder Min Tony Ryall & PM Key discussed possibility of shares being offered - but of course not for free & would not be 'sold' discounted either. Will punters feel or be discouraged because Maori may own the resource or the infrastructure? Does it really, really matter?

Will any new 49-percentage board claim economic relational losses if shares are not taken up by me & you & others? Laws will be & are made to create & to protect property rights but when it comes to protecting Maori customary rights in the law - we enter into a nationalised world of Hades. Funny that.

Andrew, you put it well when you talk about tension within common law. That's how I understood it. But as noted, Durie made a distinction between Maori and Pakeha law, which was part of what I found so intriguing and why I didn't put it that way.

The tension I was referring to was what you tease out in more detail -- English common law says one thing about water, while it's increasingly clear that Maori common law (tikanga) takes a different approach.

And you make a good point about the lack of legal precedent on this... interesting to think on the implications of new law having to be created. Durie din't want to say that, but I got the impression that's what he was hinting at, hence our question whether the law on water will need to change.

Richard/Andrew: Did you see Brian Easton's recent Listener column? He talked about finding hope at the bottom of Pandora's box, adding that an economist might find efficiency gains there. I think it was economists humour!

@Richard "Personally anything that blocks the sale of state assets is fine with me," For me this is not an instance of 'my enemies, enemy is my friend', I find both issues, asset sales and water commodification, complex and contentious and I think they should be treated separately rather than conflated.

Richard, my take is that the asset sales has forced an underlying issue to the surface. Maori (as a broad generalisation) were happy working lake by lake, spring by spring etc so long as the watre remained in non- or public ownership. They could deal with these issues via treaty claims etc.

But as soon as a private shareholder was going to profit from the resource it became clear a) we'd get some precedents laid down before it's too late and too complex, and b) if any other bugger's going to profit from this, why shouldn't my whanau/hapu/iwi?

Good point Tim re the shift that comes when private shareholders dip their toes into the water.

While I struggle with the complexity of who owns what and why. I do have a general respect for the Maori spiritual approache to things like water and earth. At that level its way more sophisticated than the common law legal approach.

I'd love to see a Maori/Green partnership approach to the protection and gaurdianship of our water. And our land, foreshore and seabed for that matter.

Maybe naive, Richard, but maybe not. Thing is we can't speak for all Maori anymore we can speak for all Pakeha. Some are more spiritual, some not. It's probably fair to say that overall Maori take a longer view re the environment (happy to think in generations or longer rather then 3 year cycles) and are many more closely connected to certain territories. But at the same time there are 8th generation Pakeha Southland farmers who can make a pretty good case for a deep connection with the land. And plenty of urban Maori with no sense of turangawaewae.

In this particular case, I've no doubt the advocates for Maori are genuine in their sense of kaitiakitanga, but equally Sir Eddie was happy to say this is about getting a fair share of the money.

Talking about this with an associate, older maori man who consults to various north island iwi. I told me about one iwi he worked with, were well pleased at the end of their 10 year plan they decided on a longer time frame, they are now working on a thousand year plan. He said it changes everything in your thinking when you are looking that far into the future.

Of course it must be said that the iwi elites have never given us a concrete assurance that New Zealanders would be able to continue with their traditional practises such as whitebaiting, eeling, trout fishing, a summer's day at the local swimming hole, kayaking, and all of those great things that happen in this great country.

It is a matter of record that once iwi get their hands on things like this, the 'keep out' signs go up in a matter of days. Mt Tawarewa, Kaingaroa Forest, Mt Hikurangi, Various blocks in the Port Nicholson Settlement, etc and so on.

And lets not forget the the massive increase in rates, water and power bills that come with the territory of someone getting ownership of a natural resource and demanding a fee.

The good people of Whangarei will definately have something to complain about when their rates bill arrives next year, and they find that the royalty payment for the use of that spring that supplies their water is passed on.

Water really needs to be owned by the Crown on behalf of all New Zealanders. Privatisation is privatisation, regardless of who might it be.